State v. Myers

301 Neb. 756

919 N.W.2d 893

STATE of Nebraska, Appellee,

v.James E. MYERS, Appellant.

No. S-18-239

Supreme Court of Nebraska.

Filed November 30, 2018.

James E. Myers, pro se.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

Cassel, J.

INTRODUCTION

Nearly 20 years after a jury convicted James E. Myers of murder, he filed a motion for testing under the DNA Testing Act.¹ The district court denied that motion as well as Myers' motion for the appointment of counsel. We would review these denials for an abuse of discretion. But to do so, the court below must have applied only the part of the legal framework governing whether to grant testing. Because the district court may have relied instead upon principles governing relief available after testing, we must reverse the order and remand the cause for reconsideration of the motions under only the correct portion of the governing framework.

BACKGROUND

CIRCUMSTANCES OF CRIMES

The State charged Myers with first degree murder, use of a deadly weapon in the commission of a felony, and possession of a deadly weapon by a felon in connection with the 1995 shooting death of Lynette Mainelli. A jury convicted Myers of the charges, and we affirmed his convictions on direct appeal.²

The factual background relating to Myers' convictions is set forth in more detail in our opinion involving Myers' direct appeal.³ Our opinion stated in part:

Edward Wilson testified that he was in the van driven by Myers the night Mainelli was killed. Myers drove to the Blue Lake Manor Apartments, where Mainelli lived. Myers got out of the van, and Edward Wilson saw that he had on gloves. Myers went to the back of the van, and Edward Wilson heard a "clacking" noise, which he recognized as the sound of a bullet moving into a chamber. Myers then left the van and walked toward the apartment complex. He was gone for about 1 hour, and upon his return, he got in the van and took the passengers home.

Sam Edwards testified that as Myers dropped him off, Myers gave him a handgun and told him to "put it up" because the police were out and Myers had in-transit stickers on the van. Earlier, Edwards had seen the pistol on Myers' lap. Edwards subsequently retrieved the pistol and gave it to Edward Wilson, who stated the pistol had once belonged to his sister, Edwina Wilson. Edward Wilson testified that he recognized the gun because it had a unique color and a name written on it and that he thought the black handle was unusual. Edward Wilson sold the pistol because he suspected that it had been used in the murder of Mainelli. The pistol was the same caliber as two .22-caliber casings found beside Mainelli’s body. Daniel Bredow, a firearm toolmarks examiner with the city of Omaha, testified that he compared the bullets found at the crime scene with bullets fired from the gun Myers gave Edwards. Bredow concluded that the bullets taken from the crime scene had been fired by the gun which could be traced to Myers.

[Timothy] Sanders testified that in the summer and early fall of 1995, Myers had said that Mainelli was going to testify against Charles Duncan, so she needed to have "her cap pulled back and to be shot." Sanders saw Myers with a small .22-caliber handgun in the summer of 1995. Edwina Wilson testified that in December 1996, after Mainelli’s death, Myers had told her to tell the police he was with her at the time of the killing.⁴

Other information relevant to the instant appeal is derived from the trial record. The State presented evidence about Myers' plan to be intimate with Mainelli. Timothy Sanders, who was in the same gang as Myers, testified that Myers said Mainelli needed to be shot and that Myers said he was going to have sex with Mainelli. Sanders testified that after Mainelli’s death, Myers told him that Mainelli walked into her bedroom, took off her clothes, laid on the bed, and Myers shot her once the lights were out. In closing arguments, the prosecutor summarized: "She took off her clothes; she laid on the bed. He put the gun towards her temple and he shot her."

MOTION FOR DNA TESTING

In 2016, Myers filed a motion pursuant to the DNA Testing Act seeking "DNA testing of items of evidence that may contain biological material." He listed 26 items of evidence taken from the crime scene, and he wished to have those items tested in order to exclude himself as a donor of any biological material. The items included Mainelli’s bedding, bullets and spent .22-caliber casings, beverage containers, clothing, spiral notebooks, cigarette butts and contents of ashtrays, gunshot residue test kit from Mainelli’s hands, vials of Mainelli’s blood, a rape kit, and hair samples.

Myers sought a variety of different DNA tests. He wanted testing of any hairs, blood, semen, saliva, or skin cells on various items, asserting that if such DNA evidence excluded Myers and was found to be of another male, "this would prove that the story from the informant was false, and Myers is in fact [i]nnocent." Myers alleged there was "good cause to believe biological evidence still exists and can be identified and profiled with today’s DNA technology." Myers asserted that if a suspect touched his face or head while wearing gloves, the skin cells could be transferred to other objects. Myers wanted the spent .22-caliber casings tested, because "it has become possible to obtain DNA profiles from few skin cells left by the person who loaded a shell into a gun." Myers also moved for the appointment of counsel. In connection with a motion to preserve evidence, Myers included a laboratory report showing that a sexual assault examination of Mainelli was performed and that a vaginal swab and vaginal smear slide from a sexual assault kit revealed "[v]ery few spermatozoa."

Myers filed an affidavit in support of his motion for DNA testing. He stated that DNA evidence was not available at the time of his trial, that law enforcement withheld any findings of biological evidence from him, and that testing all of the items would exonerate him. Myers also stated that he was with his girlfriend on the night of the murder and that testing all of the items would prove that the State’s informant lied. He subsequently filed a supplemental amendment to his motion, seeking DNA testing of the sexual assault kit.

The State filed an inventory of evidence that had been gathered in connection with the case. It showed that the items Myers wished to have tested were in the State’s possession.

The district court held a hearing. Myers asked the court to consider his motion along with the supplemental amendment and to take judicial notice of § 29-4120(5). He presented no evidence. The State likewise presented no evidence, but it requested that the court review the bill of exceptions from the trial, along with Myers' motion to determine whether DNA testing was appropriate.

DISTRICT COURT’S DECISION

The district court denied Myers' motion. It found that DNA testing was not warranted under § 29-4120(5)(c), because the results would not provide exculpatory evidence. The court quoted extensively from a portion of State v. Buckman⁵ (including portions of the Buckman opinion which relied on State v. Bronson⁶ ) where we discussed when a court may vacate and set aside a judgment based on test results that "exonerate or exculpate" an accused and "show a complete lack of evidence to establish an essential element of the crime charged."

The court explained that testing of the evidence would not exonerate or exculpate Myers in light of the evidence at trial, because "the absence of [Myers'] DNA from these items would not establish [Myers'] innocence considering witnesses testified he intentionally wore gloves that would prevent his DNA from being left at the scene." The court reasoned that "the absence of [Myers'] DNA or the presence of another person’s DNA at the scene on those items would not alone be enough to exonerate [Myers] considering his motive for the crime, inculpatory statements made and witness testimony regarding his actions directly before and after the murder." Further, the court stated that testing of a sexual assault kit would not exonerate or exculpate Myers, because the State did not argue that Myers had sex with Mainelli on the night of the murder. The court concluded that "regardless of whether [Myers'] DNA was excluded or someone else’s DNA could be found on this evidence, such DNA results would not ‘show a complete lack of evidence to establish an essential element of the crime charged’ when you consider the totality of the evidence."

Myers timely appealed.

ASSIGNMENTS OF ERROR

Myers assigns that the district court erred in (1) refusing to order DNA testing, (2) making findings of fact and conclusions of law without actual DNA results, (3) failing to determine whether the State refused to allow him access to DNA evidence, and (4) failing to appoint counsel to represent him.

STANDARD OF REVIEW

A motion for DNA testing is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court’s determination will not be disturbed.⁷ An appellate court will uphold a trial court’s findings of fact related to a motion for DNA testing unless such findings are clearly erroneous.⁸

Decisions regarding appointment of counsel under the DNA Testing Act are reviewed for an abuse of discretion.⁹

ANALYSIS

MOTION FOR DNA TESTING

In denying Myers' motion for DNA testing, the district court relied in large part on our decision in Buckman .¹⁰ We agree that Buckman is instructive regarding the showing that must be made at various stages. But it is also important to remember that both Buckman and the Bronson¹¹ decision cited in Buckman were appeals where DNA testing had been ordered and focused on the relief sought and denied based upon the test results.

In Buckman , we first summarized the legal framework applicable in determining whether to order testing. We sa...